Youngevity International Inc. v. Innov8tive Nutrition, Inc.
- Proceeding
- district
- Area
- civil
- Panel
- Allison H. Goddard (author)
Analysis
The parties filed a joint motion for leave to serve a non-party with a revised subpoena through alternative service after attempts at personal service failed. The court granted the motion, authorizing service via email to the non-party's counsel and certified mail to its registered agent.
| What the court decided | The model |
|---|---|
Granting the joint motion for leave to serve the non-party through alternative service“Upon due consideration, the Court finds good cause to GRANT the parties’ joint motion.” | agree with court The court applied the standard for alternative service of a subpoena, requiring a showing of diligence in attempting personal service and that the proposed method is reasonably calculated to provide notice. The order recites that the plaintiff attempted personal service on three occasions and that the non-party's counsel refused to accept service despite having previously objected to the subpoena. This record supports the finding of good cause and that the proposed methods (email to counsel and certified mail to registered agent) are reasonably calculated to provide notice. |
The order itself: sound — The order correctly identifies the legal standard for alternative service of a subpoena under Rule 45 and applies it to the specific facts recited in the joint motion. It cites relevant district court cases that support the proposition that diligence in attempting personal service and the reasonableness of the alternative method are the key factors. The reasoning is concise but sufficient for a procedural order granting a joint motion based on an undisputed record of failed service attempts.
Opinion
1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 SOUTHERN DISTRICT OF CALIFORNIA 11 12 YOUNGEVITY INTERNATIONAL Case No.: 3:22-cv-00721-LL-AHG INC., 13 ORDER GRANTING JOINT Plaintiff, MOTION FOR LEAVE FOR 14 PLAINTIFF TO SERVE v. 15 NON-PARTY FIT BRANDS LLC INNOV8TIVE NUTRITION, INC., et al., THROUGH ALTERNATIVE 16 SERVICE Defendants. 17 [ECF No. 78] 18 19 20 21 22 23 24 Before the Court is the parties’ joint motion for leave for Plaintiff Youngevity 25 International Inc. (“Plaintiff”) to serve Non-Party FIT Brands LLC (“Fit Brands”) with a 26 revised subpoena through alternative service. ECF No. 78. 27 “Federal Rule of Civil Procedure 45(b)(1) provides that ‘[s]erving a subpoena 28 requires delivering a copy to the named person[.]’ However, after attempts at personal 1 serve have been tried and failed, ‘[c]ourts are more inclined to grant [] alternative service’ 2 provided ‘the serving party has provided sufficient evidence of its earlier diligence in 3 attempting to effectuate personal service.’” Bhatia v. United States, No. 2:19-cv-2313- 4 DAD-DB, 2024 WL 967616, at *1 (E.D. Cal. Mar. 6, 2024) (brackets in original) (quoting 5 Fujikura Ltd. v. Finisar Corp., No. 15-mc-80110-HRL-JSC, 2015 WL 5782351, at *5 6 (N.D. Cal. Oct. 5, 2015)). Courts are also more inclined to grant alternative service where 7 the proposed method of alternative service “is reasonably calculated to provide timely, fair 8 notice and an opportunity to object or file a motion to quash.” In re Delta Air Lines, Inc., 9 No. LA-CV20-00786-JAK-SKx, 2023 WL 9018986, at *4 (C.D. Cal. Dec. 4, 2023) 10 (quoting Fujikura, 2015 WL 5782351, at *5). 11 Here, Plaintiff served Fit Brands with a document subpoena on December 11, 2024. 12 ECF No. 78 at 2; ECF No. 78-1 at 6. On December 19, 2024, Fit Brands, through counsel, 13 emailed its objections to the subpoena. ECF No. 78 at 2; ECF No. 78-1 at 11. “[I]n an 14 attempt to obviate the need for court involvement,” Plaintiff revised its subpoena. ECF 15 No. 78 at 2. Plaintiff represents to the Court that it has diligently attempted to serve its 16 revised subpoena on Fit Brands through its registered agent and through its counsel. Id. For 17 example, Plaintiff’s process server attempted to serve Fit Brands with the revised subpoena 18 on December 27, December 28, and December 30, but was unable to do so; thus, Plaintiff 19 now “believes that Fit Brands is now intentionally evading service.” Id. at 2–3; ECF No. 20 78-1 at 20. Further, Fit Brands’ counsel “refus[ed] to accept service of the revised subpoena 21 despite objecting to the subpoena on behalf of Fit Brands.” ECF No. 78 at 3; ECF 22 No. 78-1 at 8 (“I am not authorized to accept service on behalf of FIT Brands, LLC of 23 anything.”). As such, the parties jointly request that Plaintiff be permitted to serve the 24 revised subpoena on Fit Brands’ counsel through the email address that counsel used to 25 serve Fit Brands’ objections to Plaintiff’s original subpoena, and serve the revised 26 subpoena on Fit Brands’ registered agent through certified mail. ECF No. 78 at 4. Plaintiff 27 contends that its proposed methods of alternative service will provide Fit Brands with 28 timely and fair notice and an opportunity to object and quash the subpoena. Id. at 3. 1 Upon due consideration, the Court finds good cause to GRANT the parties’ joint 2 ||motion. ECF No. 78. Plaintiff is granted leave to serve the revised subpoena on Fit Brands 3 emailing the revised subpoena to Fit Brands’ attorney, Jeffrey S. Moeller 4 || gmoeller@sseg-law.com), and by mailing the revised subpoena, through certified mail, to 5 || Fit Brands’ registered agent, Richard V. Washburn, 440-44 Deer Island Dr., Aurora, OH 6 || 44202. 7 IT IS SO ORDERED. 8 Dated: January 6, 2025 5 Mpwuor H. Xyvolart Honorable Allison H. Goddard 10 United States Magistrate Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28